McGlothlin v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/18/2018. (PSM)

FILED
2018 Sep-18 AM 11:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN MCGLOTHLIN,
Plaintiff,
vs.
NANCY BERRYHILL,
Commissioner of Social Security,
Defendant.

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2:17-cv-1152-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, John McGlothlin, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
his applications for a period of disability and Disability Insurance Benefits
(“DIB”). Mr. McGlothlin timely pursued and exhausted his administrative
remedies and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3).
Mr. McGlothlin was fifty-one years old at the time of the Administrative
Law Judge’s (“ALJ’s”) decision, and he has a college education. (Tr. at 177.) His
past work experiences include employment as a researcher and an assistant

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librarian. (Id.) Mr. McGlothlin claims that he became disabled on March 22, 2013,
due to a torn rotator cuff, bulging disc in the lumbar spine, obesity, asthma,
allergies, chronic bronchitis, depression, anxiety, edema, onset of congenital heart
failure, high blood pressure, gout, and sleep apnea. (Tr. at 176.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).

See id. §§

404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding

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of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

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If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Mr.
McGlothlin meets the nondisability requirements for a period of disability and DIB
and was insured through the date of his decision. (Tr. at 23.) He further
determined that Mr. McGlothlin has not engaged in SGA since the alleged onset of
his disability. (Id.) According to the ALJ, Plaintiff’s obesity; history of chronic ear
disease; edema of the lower extremities; degenerative disk disease; and s/p rotator
cuff repairs are considered “severe” based on the requirements set forth in the
regulations. (Id.) However, he found that these impairments neither meet nor
medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. at 27.) The ALJ did not find Mr. McGlothlin’s allegations to be

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totally credible, and he determined that he has the following RFC: the performance
of light work which allows for no right upper extremity pushing/pulling or
overhead reaching; he can do only occasional stooping and crouching; he cannot do
any climbing or driving; and he can have no access to unprotected heights. (Id.)
According to the ALJ, Mr. McGlothlin is capable of performing past relevant
work as an assistant librarian and researcher as it is actually and generally
performed. (Tr. at 31.) Thus, the ALJ concluded his findings by stating that
Plaintiff “was not under a ‘disability,’ as defined in the Social Security Act, at any
time through the date of this decision.” (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).

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Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).

“The substantial evidence standard permits administrative decision

makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion

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Mr. McGlothlin alleges that the ALJ’s decision should be reversed and
remanded for two reasons. First, he believes that the ALJ’s determination of his
RFC is not supported by substantial evidence. Second, Plaintiff contends that the
ALJ improperly discredited his subjective complaints of pain.
A.

Determination of RFC

The RFC is the ALJ’s assessment of the most a claimant can do despite his
impairments based on all of the relevant medical and other evidence. See 20 C.F.R.
§§ 404.1545(a)(1), (3), 416.945(a)(1), (3). Plaintiff quarrels with the ALJ’s RFC
determination in several respects.
First, he argues that the ALJ did not follow Social Security Ruling (“SSR”)
96-8p, which provides that an RFC assessment must identify an individual’s
functional limitations and assess his work-related abilities on a function-by-function
basis prior to expressing the RFC in terms of general exertional levels. See SSR 968p, 1996 WL 374184, at *3. SSR 96-8p also requires that the RFC assessment
“include a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).” See id. Contrary to Plaintiff’s
argument, however, the ALJ properly discussed the relevant evidence in

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accordance with SSR 96-8p in order to find that Plaintiff could perform light work
as defined in 20 C.F.R. § 404.1567(b). (Tr. at 27-31).
More specifically, the ALJ discussed that on September 27, 2012, Plaintiff
visited Dr. Poczatek for lower back and right lower extremity pain. (Tr. at 309.)
Examination of Plaintiff’s trunk as well as upper and lower extremities showed
evidence of edema, functional range of motion in hips and knees, and fully
functional strength with equal and normal reflexes at the patellar and Achilles
tendon. (Tr. at 310.) Plaintiff was referred for an MRI to examine the lumbar spine
and was instructed to increase activity as tolerated but avoid any activity
aggravating his symptoms. (Id.) On October 5, 2012, Dr. Poczatek’s review of the
MRI demonstrated some bulging at the L4-5 disc, an annular tear to the exiting L4
nerve root, and no focal disc protrusion or herniation. (Tr. at 24, 304, 312.) Again,
Plaintiff had no edema, functional range of motion in hips and knees, and fully
functional strength of lower extremities. (Tr. at 313.) In October 2012 and January
2013, Plaintiff was given lumbar epidural block injections without complications.
(Tr. at 305-08, 315.)
Then the ALJ discussed that Plaintiff visited Dr. Smith on March 13, 2013,
for an examination of right shoulder pain. (Tr. at 24, 332.) Dr. Smith found that an
MRI of the right shoulder showed a massive rotator cuff tear with biceps tendon

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subluxation, subacromial impingement. (Id.) Dr. Smith scheduled Plaintiff an
arthroscopy rotator cuff surgery and noted that Plaintiff could return to sedentary
work until he had the surgery. (Tr. at 332.) Post-operative reports from April, May,
and June 2013 indicated that Plaintiff was continuing physical therapy and making
positive progress. (Tr. at 24, 329-31.) Dr. Smith indicated that Plaintiff could drive
and return to light duty work in June 2013. (Tr. at 329.) Plaintiff returned to Dr.
Smith after complaining of shoulder pain caused by doing activities at work that he
knew he should not have done after surgery. (Tr. at 24, 328.) An MRI in August
2013 showed that Plaintiff had a recurrence of his rotator cuff tear, and he
underwent a second surgery in September 2013. (Tr. at 24, 327.) Post surgery,
Plaintiff was instructed by Dr. Smith that he could return to light duty work. (Tr. at
24, 322-26.)
On February 3, 2014, Plaintiff returned to Dr. Poczatek and reported that his
shoulder physical therapy was limited by his back pain. (Tr. at 318.) However,
during a visit 11 days later with Dr. Smith, Plaintiff did not mention back pain, and
Plaintiff’s sole concern was his ability to return to work with the required overhead
reaching demands on his shoulder. (Tr. at 322.) Additionally, Dr. Smith noted that
Plaintiff was doing well, and physical therapy indicated that Plaintiff had forward

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flexion of 4+/5, abduction 4/5, external rotation 5/5, internal rotation 5/5, and 5/5
bicep. (Id.)
As the ALJ also discussed, Plaintiff underwent the recommended functional
capacity evaluation by Charles McKie, LAT, on March, 13, 2014. (Tr. at 25, 37578.) Mr. McKie opined that Plaintiff could lift 30 pounds floor to waist and carry 25
pounds; he may have difficulty lifting, working overhead, holding weights in a static
position with the right hand and working in awkward positions; and he should avoid
climbing and working from ladders or unprotected heights. (Tr. at 35, 375.) On
April 1, 2014, Dr. Smith met again with Plaintiff and discussed the evaluation with
Plaintiff, Plaintiff had no complaints, and Dr. Smith released him back to work at
medium duty, per the functional evaluation. (Tr. at 25, 381.)
Considering that the ALJ assessed all of the aforementioned evidence in
reaching his RFC determination, and that light work is defined in detail in the
regulations, including how much sitting, standing, and walking is required, see SSR
83-10, 1983 WL 31251, at *5, the ALJ was not required to further discuss Plaintiff’s
ability to perform each of the exertional demands of light work. See Castel v. Astrue,
355 F. App’x 260, 263 (11th Cir. 2009) (rejecting the argument that the ALJ did
not complete a proper function-by-function analysis in accordance with SSR 96-8p
when the ALJ considered the medical evidence and the plaintiff’s testimony in

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arriving at the RFC); see also, e.g., Goodrow v. Colvin, No. 2:13-cv-672-FtM-CM,
2014 WL 3955076, at *3-4 (M.D. Fla. Aug. 13, 2014) (“Provided the ALJ considers
all of the evidence, he is not required to specifically and explicitly set forth his
findings on a ‘function-by-function basis’ concerning a claimant’s functional
limitations and work-related abilities.”); Davila v. Colvin, No. 8:12-CV-2334-TTGW, 2014 WL 495525, at *10 (M.D. Fla. Feb. 5, 2014) (“As the Eleventh Circuit
has held, there is nothing in SSR 96-8p that requires the law judge to make a
written assessment of each of the factors.”).
Plaintiff also contends that the ALJ’s RFC assessment conflicts with the
opinion of Dr. Richard Harris, a physician to whom Plaintiff was referred by the
Administration for a consultative examination on December 11, 2015. (Tr. at 45156.) Plaintiff complained to Dr. Harris of back and shoulder pain and stated that he
was not very active because of his size and decreased use of his shoulder. (Tr. at
451.) Upon examination, Plaintiff weighed 400 pounds and was five feet tall. (Tr. at
452.) However, Dr. Harris indicated that Plaintiff had good strength and range of
motion in both shoulders, negative straight leg raises bilaterally, and full range of
motion of hips, knees, and ankles. (Tr. at 451.) He noted that Plaintiff could open
and close doors and pick up small objects and that he could lace and unlace shirts
but not his shoes. (Tr. at 452.) Dr. Harris diagnosed Plaintiff with post shoulder

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surgery. (Id.) Dr. Harris did note that “with [Mr. McGlothlin’s] obesity and
inability to move around there is a concern that he is capable in the workplace.”
(Id.) The physician also completed a Medical Source Statement in which he opined
Plaintiff could occasionally lift/carry up to 20 pounds. (Tr. at 452). Dr. Harris also
opined Plaintiff could sit for only ten minutes, stand for only five minutes, and walk
for only five minutes at one time without interruption and the rest of the 8 hours in
any given workday Plaintiff is “at home.” (Tr. at 453). The ALJ gave Dr. Harris’s
opinion significant weight because he stated that it was consistent with his RFC
determination. (Tr. at 31.) Plaintiff’s argument is that because the vocational expert
testified at his hearing that a hypothetical individual who had to change posture
every 15 minutes would not be able to perform any sedentary, light or medium jobs
(tr. at 71), and because Dr. Harris’s opinion—which was given significant weight
by the ALJ—was that Plaintiff would have to change posture at least every 15
minutes, then the ALJ was required to find that there would be no work that
Plaintiff could maintain. Plaintiff’s argument fails because an ALJ is certainly not
required to adopt a medical source’s opinion as his or her own. It is by now
axiomatic that determining a claimant’s RFC and ability to work is a task for the
ALJ, and not doctors. See Robinson v. Astrue, 365 F. App’x 939, 999 (11th Cir. 2010)
(unpublished) (“[T]he task of determining a claimant’s [RFC] and ability to work

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is within the province of the ALJ, not of doctors.”); 20 C.F.R. § 404.1527(d)(2)
(“Although we consider opinions from medical sources on issues such as . . . your
[RFC] . . . the final responsibility for deciding these issues is reserved to the
Commissioner.”). Additionally, the regulations provide that an ALJ is not required
to give any deference to the opinions of one-time consultative examiners, such as
Dr. Harris. See 20 C.F.R. § 404.1502; see also McSwain v. Bowen, 814 F.2d 617, 619
(11th Cir. 1987). There was no reversible error in the ALJ giving Dr. Harris’s
opinion significant weight, as Dr. Harris’s opinion was generally consistent with
the ALJ’s RFC. In fact, the RFC in some cases was more restrictive than Dr.
Harris’s opinion. For instance, Dr. Harris noted that Plaintiff could occasionally
reach overhead, while the RFC forbade overhead reaching in its entirety. (Compare
tr. at 454 with 27.)
Plaintiff also argues that the ALJ did not consider his own testimony that
when he takes his prescribed medication for bilateral lower extremity edema, Lasix,
which is a diuretic, he experiences urinary frequency for several hours and has to go
to the bathroom every ten to fifteen minutes. (Tr. at 45.) Plaintiff’s contention is
that because the vocational expert testified that a person who had to go to the
bathroom every ten minutes could not hold a job (tr. at 73), then the ALJ should
have found him disabled. However, the objective medical evidence does not

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support Plaintiff’s contention that his urinary frequency was disabling. For
instance, despite having taken Lasix since September 2012, in January 2013 the
only medication side effect Plaintiff reported having was dry mouth. (Tr. at 276,
290.) Although in November 2014 he reported increased urinary frequency, he was
directed to only take the medication on Mondays, Wednesdays, and Fridays in
order to alleviate this issue. (Tr. at 391.) As discussed in the next section, the ALJ
found that Plaintiff’s statements concerning the limiting effects of his symptoms
were not entirely credible, a finding that encompasses his testimony about his
medication side effects.
In sum, the ALJ’s RFC finding is supported by substantial evidence, and
Plaintiff has failed to show he consistently had any additional limitations not found
by the ALJ included in his RFC finding.
B.

Subjective Complaints of Pain

Subjective testimony of pain and other symptoms may establish the presence
of a disabling impairment if it is supported by medical evidence. See Foote v. Chater,
67 F.3d 1553, 1561 (11th Cir. 1995). To establish disability based upon pain and
other subjective symptoms, “[t]he pain standard requires (1) evidence of an
underlying medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that condition or (3) that the

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objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)); see also Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). The ALJ is
permitted to discredit the claimant’s subjective testimony of pain and other
symptoms if he articulates explicit and adequate reasons for doing so. Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 96-7p, 1996
WL 374186 (1996) (“[T]he adjudicator must carefully consider the individual’s
statements about symptoms with the rest of the relevant evidence in the case
record in reaching a conclusion about the credibility of the individual’s
statements.”). Although the Eleventh Circuit does not require explicit findings as
to credibility, “‘the implication must be obvious to the reviewing court.’” Dyer,
395 F.3d at 1210 (quoting Foote, 67 F.3d at 1562). “[P]articular phrases or
formulations” do not have to be cited in an ALJ’s credibility determination, but it
cannot be a “broad rejection which is “not enough to enable [the district court or
this Court] to conclude that [the ALJ] considered his medical condition as a
whole.” (Id.) (internal quotations omitted).
Mr. McGlothlin challenges the ALJ’s credibility determination with regard
to his subjective complaints of back pain, shoulder pain, side effects from

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medication, and lower extremity edema. However, substantial evidence supports
the ALJ’s determination that Plaintiff’s statements regarding the intensity,
persistence, and functionally limiting effects of his alleged symptoms were not
entirely consistent with the medical evidence and other evidence in the record. (Tr.
at 28-30.) The objective medical evidence from several treating physicians, as
discussed in the previous sections, undermines Plaintiff’s subjective complaints.
For instance, in terms of his back pain and edema in his lower extremities, Plaintiff
demonstrated, on multiple occasions, full range of motion of hips, knees, and
ankles, and medical reports from Dr. Poczatek and Dr. Crenshaw did not state that
Plaintiff’s back pain or edema interfered with his ability to ambulate. (Tr. at 30920, 403, 413.)
Further, Plaintiff reported that he can prepare simple meals, do laundry,
clean, drive and ride in a car, and shop for clothes and groceries. (Tr. at 29-30, 20203.) These activities are not indicative of the severity of limitations alleged by the
plaintiff. Although not dispositive, an ALJ may certainly consider a Plaintiff’s selfreported daily activities in assessing a claimant’s credibility. See 20 C.F.R. §
404.1529(c)(3)(i); Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987); 20 C.F.R.
§ 404.1529(c)(4) (noting that in evaluating a claimant’s subjective statements, an

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ALJ may consider any conflicts between claimant’s statements and rest of the
evidence).
In sum, the ALJ specifically addressed Plaintiff’s allegations of pain in his
opinion, and he provided explicit and reasonable reasons for rejecting his
testimony. The objective medical and other evidence supports the ALJ’s
conclusion that Plaintiff’s condition did not cause disabling limitations and instead
shows that he could perform light work.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr.

McGlothlin’s arguments, the Court finds the Commissioner’s decision is
supported by substantial evidence and in accord with the applicable law. A separate
order will be entered.
DONE and ORDERED on September 18, 2018.

_____________________________
L. Scott Coogler
United States District Judge
160704

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